Endangered Species Act: Information on Species Protection on Nonfederal
Lands (Letter Report, 12/20/94, GAO/RCED-95-16).

Congress is considering reauthorization of the Endangered Species Act.
GAO was asked to obtain information on the efforts of the Fish and
Wildlife Service to protect species on nonfederal lands. A predominant
number of the species protected under the Act have the major share of
their habitat on nonfederal lands. Specifically, of the 781 listed
species for which the Fish and Wildlife Service was responsible as of
May 1993, 712 (or over 90 percent) have habitat on nonfederal lands and
of these, 516 have over 60 percent of their total habitat on nonfederal
lands. Two processes authorized under the Act have addressed potential
conflicts between the effort to protect species and land use activities
on nonfederal lands. The implementation of these processes has resulted
in nonfederal landowners altering their planned or ongoing activities in
various ways to minimize and/or mitigate their potential impact on
endangered species. In addition, the Fish and Wildlife Service and
others have initiated legal action to protect species.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  RCED-95-16
     TITLE:  Endangered Species Act: Information on Species Protection 
             on Nonfederal Lands
      DATE:  12/20/94
   SUBJECT:  Endangered animals
             Environmental policies
             Land management
             Land use law
             Environmental law
             Law enforcement
             Wildlife conservation
             Endangered plants
             Real property
IDENTIFIER:  FWS Law Enforcement Management Information System
             
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Cover
================================================================ COVER


Report to Congressional Requesters

December 1994

ENDANGERED SPECIES ACT -
INFORMATION ON SPECIES PROTECTION
ON NONFEDERAL LANDS

GAO/RCED-95-16

Species Protection on Nonfederal Lands


Abbreviations
=============================================================== ABBREV

  ESA - Endangered Species Act
  FWS - Fish and Wildlife Service
  GAO - General Accounting Office
  HCP - habitat conservation plan
  NEPA - National Environmental Policy Act

Letter
=============================================================== LETTER


B-257924

December 20, 1994

The Honorable Gerry E.  Studds
Chairman
The Honorable Jack Fields
Ranking Minority Member
Committee on Merchant Marine
 and Fisheries
House of Representatives

The Honorable Jim Saxton
Ranking Minority Member
Subcommittee on Environment
 and Natural Resources
Committee on Merchant Marine
 and Fisheries
House of Representatives

The Congress is currently considering reauthorization of the
Endangered Species Act (ESA).  To assist in this effort, you asked
that we obtain information on the efforts of the Department of the
Interior's U.S.  Fish and Wildlife Service (Service) to protect
species under the ESA, particularly on nonfederal lands. 
Specifically, we (1) determined the extent to which species listed
under the act have habitat on nonfederal lands, (2) obtained
information on how two of the act's provisions have addressed
potential conflicts between species protection and the use of
nonfederal lands, and (3) determined the extent and nature of legal
actions taken to protect species or as a result of the protection
being provided to species. 

This letter provides the results of our review.  The statistical data
included in this letter were primarily obtained from Service
officials in response to a survey we conducted. 


   RESULTS IN BRIEF
------------------------------------------------------------ Letter :1

A predominant number of the species protected under the Endangered
Species Act have the major share of their habitat on nonfederal
lands.  Specifically, of the 781 listed species for which the Service
was responsible as of May 1993, 712--over 90 percent--have habitat on
nonfederal lands.  Of these, according to the Service, 517 have over
60 percent of their total habitat on nonfederal lands. 

Two processes authorized under the act--the consultation process
under section 7 and the habitat conservation planning process under
section 10--have addressed potential conflicts between the effort to
protect species and land use activities on nonfederal lands.  The
implementation of these processes has resulted in nonfederal
landowners' altering their planned or ongoing activities in various
ways to minimize and/or mitigate their potential impacts on protected
species.  For example, nonfederal landowners have been required to
replace species habitat expected to be lost as a result of their
activities. 

The Service and others have initiated legal actions to protect
species or as a result of the protection being provided to species. 
Specifically, the Service has enforced the act's prohibition on the
taking of protected species.\1 The Service's data showed that for 126
takings violations adjudicated during fiscal years 1988 through 1993,
criminal charges were brought in 86 instances, and civil charges were
brought in 40 instances.  In at least four instances, injunctive
relief was obtained to stop or delay an activity on nonfederal lands
that was viewed as posing a threat to a protected species.  And court
decisions in two instances denied individuals' claims that species
protection under the act resulted in the uncompensated taking of
private property in violation of the Fifth Amendment to the U.S. 
Constitution. 


--------------------
\1 "Taking" is defined broadly and includes killing, harming, or
harassing protected animal species and, in certain instances,
modifying their habitat.  While the taking provision does not apply
to plant species, plants do receive protection under other provisions
of the ESA. 


   BACKGROUND
------------------------------------------------------------ Letter :2

The Congress enacted the ESA in 1973 to protect plant and animal
species whose survival is in jeopardy.  The Secretary of the
Interior, through the U.S.  Fish and Wildlife Service, generally is
responsible for implementing the ESA for freshwater and land
species.\2 Section 9 of the act, its primary species protection
provision, and ESA's implementing regulations generally prohibit the
taking of threatened or endangered fish and wildlife species (listed
species).  In addition to this provision, the act established two
important processes that provide for the protection of listed species
existing on nonfederal lands--the consultation process under section
7 and the habitat conservation planning process under section 10. 

The consultation process under section 7 can affect nonfederal
landowners if a project or activity on nonfederal lands requires some
form of federal approval, such as a permit, or involves the
expenditure of federal funds.  Specifically, section 7 requires,
among other things, federal agencies to consult with the Service to
ensure that actions they authorize, fund, or carry out are not likely
to jeopardize the continued existence of a listed species, including
plants, or damage its "critical habitat"--that is, habitat that the
Service has deemed essential to the species' survival and that may
require special management or protection.  If a consultation
determines that a federally authorized or funded activity on
nonfederal lands is likely to adversely affect listed species, the
nonfederal landowner (or the authorizing federal agency) may be
required to implement actions to minimize and/or mitigate the
activity's impact on listed species or their critical habitat. 

The habitat conservation planning process under section 10 provides a
mechanism to address situations in which nonfederal projects or
activities not requiring federal authorization or funding are in
potential conflict with the protection of listed species; that is,
such projects or activities may result in a prohibited taking of a
listed animal or plant.  Through this process, nonfederal landowners
with activities or projects that may harm listed species can obtain a
permit that allows the incidental taking of a listed species. 

To obtain an "incidental take" permit, the nonfederal landowner must
develop a habitat conservation plan (HCP)--a formal plan that
specifies the effects that landowners' activities are likely to have
on listed species, the measures that will be taken to minimize and
mitigate these effects, the alternatives that the applicant
considered and reasons why such alternatives were not implemented,
and any other measures the Service may require.  Typical activities
in the process of developing an HCP include identifying affected
listed species and probable impacts, negotiating with the Service
over appropriate mitigation measures, and developing an environmental
impact statement or environmental assessment.\3 The Service cannot
approve a plan and issue a permit allowing incidental taking,
however, if doing so would appreciably reduce the species' chances
for survival and recovery. 


--------------------
\2 The Secretary of Commerce, through the National Marine Fisheries
Service, is responsible for most saltwater species protected under
the ESA. 

\3 These are public documents required under the National
Environmental Policy Act (NEPA).  The purpose of NEPA is to foster a
full disclosure and analysis of the environmental issues surrounding
a proposed federal action. 


   LISTED SPECIES' HABITAT IS
   PREDOMINATELY ON NONFEDERAL
   LANDS
------------------------------------------------------------ Letter :3

Over 90 percent (712 of 781) of the listed species in the United
States for which the Service had responsibility as of May 10, 1993,
have some or all of their habitat on nonfederal lands.  The 712
species with habitat on nonfederal lands are divided approximately
equally between plants and animals (vertebrates and invertebrates)
(see fig.  1). 

   Figure 1:  Type of Listed
   Species With Nonfederal Habitat

   (See figure in printed
   edition.)

Note:  Total number of species with nonfederal land habitat:  712

Nonfederal lands represent a considerable portion of the total
habitat for most of the 712 species.  Table 1 provides data on the
portion of the habitat for the 712 species that is on nonfederal
lands. 



                           Table 1
           
            Portion of Listed Species' Habitat on
                       Nonfederal Lands


Estimated percentage
of habitat on           Vertebrate  Invertebrate  Plan  Tota
nonfederal lands                 s             s    ts     l
----------------------  ----------  ------------  ----  ----
1-20 percent                    31             4    34    69
21-40 percent                   24             6    16    46
41-60 percent                   40             7    33    80
61-80 percent                   40             5    30    75
81-99 percent                   72            54    52   178
100 percent                     44            32   188   264
============================================================
Total                          251           108   353   712
------------------------------------------------------------
According to the data in table 1, 517 (about 73 percent) of the 712
species have over 60 percent of their total habitat on nonfederal
lands, while 264 (about 37 percent) of the 712 species are completely
dependent on nonfederal lands for their habitat. 

Many listed species share their nonfederal habitat with other listed
species.  More specifically, 454 species exist with other listed
species on the same nonfederal lands.  Of these, 138 share the same
nonfederal habitat with 1 other listed species, while 155 share
nonfederal habitat with 5 or more other listed species. 

Nonfederal lands containing habitat for listed species are owned by a
variety of landowners.  Private landowners (private citizens and
companies or corporations) are the most prevalent type of owner; 609
species have some or all of their habitat on these lands. 
Governmental entities (state, county, and/or city governments) are
the owners of lands with habitat for 516 listed species.  Examples of
other owners of lands containing habitat for listed species include
utilities, water districts, a port district, airports, and
universities.  Figure 2 provides information on the types of
landowners and the number of listed species having habitat on their
lands. 

   Figure 2:  Type of Nonfederal
   Landowner With Habitat of
   Listed Species

   (See figure in printed
   edition.)

Note:  "Private" = private citizen and/or company corporation;
"Government" = state, county, and/or city government. 

Some nonfederal lands have been designated as critical habitat for
certain listed species.  As stated previously, if habitat is
designated as critical for a species, the Service has determined that
the habitat is essential to the survival of the species and may
require special management or protection.  Critical habitat
designated on nonfederal lands receives protection under the ESA only
when an activity affecting that habitat is included in a consultation
under section 7.  According to data provided by the Service, 80 of
the 105 species for which critical habitat has been designated have a
portion of that critical habitat on nonfederal lands.  More than half
of these, or 43 species, have over 80 percent of their critical
habitat on nonfederal lands. 


   THE ACT HAS ADDRESSED SPECIES
   PROTECTION ON NONFEDERAL LANDS
------------------------------------------------------------ Letter :4

As previously discussed, the consultation process and the habitat
conservation planning process of the ESA are the primary mechanisms
that the act establishes for species protection on nonfederal lands. 
These processes have addressed potential conflicts between species
protection and nonfederal land use activities.  In such instances,
nonfederal landowners have been required to modify their planned or
ongoing activities to minimize and/or mitigate the impacts of their
activities on protected species. 

Consultations often begin informally to determine whether a federal
agency's action may adversely affect a protected species or its
critical habitat.  If the Service determines that the action may have
an adverse effect, a formal consultation is undertaken.  During
either informal or formal consultations, the Service may identify
actions that can be taken to avoid adverse impacts. 

Service-wide data identifying all instances in which the consultation
process addressed species protection on nonfederal lands are not
readily available.  Therefore, we surveyed Service officials and
reviewed records documenting the results of selected formal and
informal consultations to determine how potential conflicts between
species protection and nonfederal land use activities have been
addressed.  The following examples briefly describe actions that
nonfederal landowners have been required to take to provide
protection for species. 

A California developer had proposed building a retail outlet mall on
land containing wetland habitat for the Sebastapol meadowfoam, a
protected plant.  Because the developer needed authorization from the
U.S.  Army Corps of Engineers (Corps)\4 to fill wetland areas, the
Corps consulted with the Service on measures the developer needed to
take to mitigate the project's impact on the plant.  The
consultation, which proceeded to the formal stage, resulted in the
developer's agreeing to (1) establish a new Sebastapol meadowfoam
colony in an off-site area and (2) acquire and protect additional
habitat containing an existing natural population of the species. 

Land planned for the expansion of a golf course within a state park
near Austin, Texas, contains critical habitat for the protected
Houston toad.  In October 1993, the Service, the National Park
Service,\5 and the project's proponent (the Texas Parks and Wildlife
Department) initiated formal consultation on the project's impact on
the toad.  In April 1994, the Service informed the Park Service of
its determination that the project, as proposed, would destroy or
adversely modify critical habitat for the toad. 

In its draft biological opinion on the proposed project's potential
impact on the toad, the Service identified two alternatives to the
project.  One alternative would avoid adversely modifying the toad's
critical habitat and avoid off-site impacts to the toad by relocating
the project to a site that did not include toad habitat.  The other
was to build the golf course as planned while implementing measures
designed to minimize and offset impacts on the toad.  These actions
would be in addition to various conservation measures previously
proposed by the applicant and would include prohibiting the use of
any pesticides found by the Service to be a threat to the toad,
controlling erosion during construction and until the site was
revegetated, performing construction during the toad's nonbreeding
season, managing habitat areas for the toad, and increasing from 260
acres to 340 acres the amount of habitat to be acquired to offset the
expected loss of 235 acres of the toad's habitat. 

As of October 1994, the Service did not know how the Park Service and
the project's proponent would respond.  According to a Service
official, the project will also need the approval of the Texas Parks
and Wildlife Commission, which will consider factors in addition to
the project's potential impacts on the toad. 

A privately owned company in California that produces salt owns land
containing habitat for two protected species--the salt marsh harvest
mouse and California clapper rail (a bird).  As a result of a formal
consultation with the Service and the Corps, the company was required
to modify the dredge-and-fill practices used to maintain its salt
ponds to reduce the practices' adverse impacts on the species. 
Specifically, the Corps' dredging permit directed the company to (1)
avoid areas with active nests belonging to the clapper rail, (2)
minimize the amount of dredge material deposited in the species'
marsh habitat, and (3) reestablish marsh vegetation in areas
disturbed by the dredge-and-fill operations. 

Sand and gravel dredging operations occurring on private lands along
streams in the Ozarks region of Missouri have been modified to
protect the Niangua darter, a protected fish.  The dredging activity,
in many cases, occurs in areas designated as critical habitat for the
darter.  Through informal consultations with the Corps, which issues
permits for the dredging operations, the Service prescribed measures
to protect the fish, including a year-round prohibition on dredging
in flowing water and a ban on all operations during the darter's
spawning period, which occurs between March 15 and June 15. 

The habitat conservation planning process, which includes the
issuance of incidental take permits, has also addressed conflicts
between species protection and activities on nonfederal lands.  As of
June 1, 1994, the Service had approved 31 HCPs, and approximately 132
plans were being developed or awaiting the Service's approval. 
Incidental take permits for 27 different species are associated with
the approved HCPs.  (Summary data on the 31 approved HCPs are
contained in app.  I.)

The scope and complexity of approved HCPs vary.  Some HCPs have
addressed how development or other land use activities and species
protection will be achieved in large geographic areas where there are
many nonfederal landowners and a broad range of residential and
commercial development activities planned and under way.  Others
address species impacts and the protection of species in the context
of a site-specific project or the activity of one nonfederal
landowner.  The incidental take permits associated with the 31
approved plans cover varying time periods--for 8 permits, the period
is 5 years or less, while for 18 permits, the period is 20 years or
more.  According to Service officials, the time required to develop
and gain the Service's approval of an HCP generally ranges from about
4 months to 3 years, depending on the complexity of the HCP and the
progress of negotiations. 

While HCPs contain a variety of measures that participants are to
take to minimize and mitigate impacts on species, nearly all plans
contain specific provisions for replacing habitat expected to be lost
as a result of the planned projects.  Also, plans often call for
nonfederal landowners, while carrying out their activities, to take
specific steps to minimize the impacts of those activities on
individual species.  The following examples illustrate the types of
measures nonfederal landowners were to take to minimize and mitigate
impacts of their activities on protected species.  The first example
describes an HCP covering a relatively large area, and the second, a
site-specific location. 

In September 1989, Clark County, Nevada, and five cities in the Las
Vegas Valley began developing a short-term HCP that would allow
development in the area to proceed and provide immediate protection
for the desert tortoise until a long-term HCP could be developed. 
The area addressed under the short-term HCP covers approximately
300,000 acres, about 200,000 of which are privately owned. 
Approximately 22,000 acres are expected to be developed during the 3
years under the short-term HCP, leading to the taking of 1,788 to
3,710 tortoises. 

The HCP establishes four activities designed to minimize and monitor
the taking of tortoises:  (1) surveying and removing tortoises at the
developer's expense before disturbing a site;\6 (2) placing the
tortoises removed from project sites in research, relocation
programs, zoos, museum exhibits, educational facilities, and adoption
programs; (3) reviewing and monitoring projects through the
submission of an HCP compliance form, before disturbing a site, which
identifies the projects and the results of the efforts to survey and
remove tortoises; and (4) conducting a public information program
designed to inform local residents of the HCP's purpose and
conditions. 

To mitigate the incidental taking of tortoises, the HCP calls for
conserving and managing at least 400,000 acres of existing federal
land as desert tortoise habitat.  Management of the habitat includes
such land use controls as eliminating grazing, restricting
off-highway vehicles and intensive recreation, and prohibiting new
mining claims.  To provide a scientific basis for designing and
managing the habitat, the county and cities are responsible for
establishing a tortoise research and relocation program focusing on
such issues as the effects of grazing, predation on the tortoise, the
genetics and demography of the tortoise, and the reintroduction of
the animals into suitable habitat.  Projects' proponents in the HCP
area are required to pay a $550 per acre mitigation fee to fund the
HCP's conservation and mitigation measures. 

The Coalinga Cogeneration Company contacted the Service in 1989 about
its plans to construct a cogeneration plant in Fresno County,
California, designed to generate steam and electrical power for use
in recovering crude oil from a nearby oil field.  The construction
and operation of the plant was expected to result in (1) the
permanent loss of 43.7 acres of habitat for the endangered San
Joaquin kit fox and (2) the temporary disturbance of an additional
43.7 acres of habitat for this species.  In addition, vehicle traffic
associated with the project could also result in the taking of the
protected blunt-nosed leopard lizard.  To mitigate the project's
impacts on the two species, the HCP calls for the company to acquire
179 acres of habitat to be managed solely for the conservation,
restoration, and enhancement of the species.  The HCP also provides
funding of $107,400 ($600 per acre) for acquiring the habitat,
$17,900 ($100 per acre) for protective fencing, and $53,700 ($300 per
acre) for long-term management of the acquired lands. 

The HCP contains numerous measures for minimizing the taking of the
two species during the plant's construction and operation.  Examples
include hiring a qualified biologist to identify occupied kit fox
dens on lands subject to modification, establishing fenced exclusion
zones around all known dens that may be affected by construction,
excavating by hand all known and potential dens that would be
destroyed during construction (to ensure that no foxes are trapped or
injured), and covering holes and trenches deeper than 2 feet at the
end of the work day or installing escape ramps to prevent entrapment
of the animals.  The company also agreed to establish an employee
orientation program covering such topics as the biology and habitat
needs of the two species, their status under the ESA, and the HCP's
measures for their protection. 


--------------------
\4 Under the Clean Water Act, the Corps must issue a permit for
dredging or filling wetlands. 

\5 The Park Service proposed to provide some funding for the project
with Land and Water Conservation funds. 

\6 This requirement does not apply to projects in specified
exclusionary zones in highly urbanized areas or projects that meet
certain criteria (for example, projects being reconstructed as a
result of fire, rehabilitated or remodeled, etc.). 


   LEGAL ACTIONS HAVE BEEN TAKEN
   TO PROTECT SPECIES
------------------------------------------------------------ Letter :5

Legal actions involving nonfederal lands or directed at individuals
to protect listed species have been taken using the authorities
contained in the ESA.  Legal actions have also been taken as a result
of the protection afforded to listed species.  More specifically, (1)
the Service has initiated legal actions to enforce the act's
prohibition against the taking of listed species, (2) the United
States and other parties have sought injunctive relief using the
act's provisions to stop or delay activities on nonfederal lands that
were viewed as posing a threat to listed species, and (3) private
citizens have claimed that species protection efforts have resulted
in the loss of property without compensation in violation of the
Fifth Amendment to the Constitution. 

We obtained Service-wide information on enforcement actions under the
ESA from the Service's computerized law enforcement data base. 
According to the data base, for fiscal years 1988 through 1993, about
4,230 violations of the ESA had been adjudicated.  While the majority
of these violations involved instances of illegal imports or exports
of listed species or of products made from listed species,\7

the data base showed that 126 (about 3 percent of all violations)
involved the illegal taking of a listed species within the United
States. 

In connection with the 126 violations, the Service's data base showed
that 86 involved criminal charges, and 40 involved civil charges.  Of
the 86 criminal violations, the data base identified a result for 71. 
For these 71, many of which had more than one result,

fines ranging from $25 to $50,000 were levied in 59 instances (in 21,
fines were $1,000 or more),

fines were suspended in 2 instances,

jail sentences ranging from 10 days to 1,170 days were given in 18
instances,

jail sentences were suspended in 2 instances, and

probation ranging from 182 days to 1,825 days was given in 33
instances. 

Of the 40 civil violations, 20 resulted in a total of about $138,000
in civil penalties.  Civil penalties assessed in individual instances
ranged from $50 to $50,000. 

To obtain information about takings investigations and the basis for
initiating takings prosecutions associated with nonfederal lands, we
surveyed Service law enforcement officials.  According to these
officials, for the period from January 1, 1988, through September 30,
1993, 321 investigations of the illegal taking of listed species on
nonfederal lands and 100 prosecutions had been initiated.\8

Table 2 shows the basis for and outcome of the 100 prosecutions,
according to these officials. 



                           Table 2
           
           Disposition of Cases Prosecuted for the
           Illegal Taking of Species Under the ESA,
                     Jan. 1988-Sept. 1993

                                                   Number of
Type of outcome for prosecution initiated       prosecutions
----------------------------------------------  ------------
Conviction based on species mortality                     32
Conviction based on modification of habitat                7
Conviction based on both mortality and                     1
 habitat
 modification
Conviction based on species harassment                     1
Out-of-court settlement                                   16
No conviction                                              8
Still in litigation                                       29
Other\a                                                    6
============================================================
Total                                                    100
------------------------------------------------------------
\a "Other" includes cases awaiting authorization for assessment of
civil penalties and one case in pretrial discussion. 

We also found that since January 1, 1983, the federal government or
some other party obtained injunctive relief in at least four
instances to stop or delay an activity on nonfederal lands that could
harm a listed species for which the Service has responsibility.\9 The
following briefly summarizes these instances: 

As a result of a suit brought by the Sierra Club and others against
the Hawaii Department of Land and Natural Resources, et al, the U.S. 
District Court ruled in November 1986 that the state's maintenance of
a population of mouflon sheep for hunting purposes was harming the
palila, a listed bird.  The court ordered the state to remove the
sheep from the bird's critical habitat.  This ruling was upheld on
appeal. 

In July 1990, the United States obtained a temporary restraining
order restricting beach-cleaning activities on private land that
could lead to the taking of four listed piping plovers.  The involved
parties subsequently signed a settlement agreement that provided
protection for the birds while allowing some beach-cleaning
activities to continue. 

In December 1993, the United States brought suit to stop a logging
company from harvesting timber on its lands in Washington state.  The
United States alleged that the harvest would have resulted in the
taking of a pair of listed northern spotted owls.  The parties first
agreed to a temporary restraining order that prohibited timber
harvest activities pending a decision on the United States' motion
for a preliminary injunction.  In January 1994, the parties agreed to
continue the prohibition on harvesting until the matter is resolved
at trial. 

An environmental group obtained a preliminary injunction in February
1994 to halt the logging of old- growth forest on private lands in
California, which was allegedly resulting in the taking of the
marbled murrelet (a listed bird). 

Concerning certain legal proceedings that claim a violation of the
Fifth Amendment to the Constitution resulting from species protection
under the ESA, as of May 1994, according to the Congressional
Research Service, only two reported court decisions had been reached. 
In one case, a rancher sought compensation from the United States
because the ESA prohibited him from killing grizzly bears that preyed
on his sheep.  The court ruled that since the government neither
owned nor controlled the grizzly bears, it was not responsible for
their actions.\10 The other case involved an individual who had
transported a listed cougar and a listed leopard from Florida to
Kentucky in violation of the ESA's ban on the transportation of
endangered animals in interstate (and foreign) commerce.  The
individual claimed that the government's seizure of these animals
deprived him of his property without just compensation and due
process.  The court found no constitutional taking since the ESA only
prevented the sale of the endangered animals in interstate commerce,
leaving the individual the option of selling the animals within the
state of Florida.\11


--------------------
\7 According to Service officials, data maintained in the Service's
Law Enforcement Management Information System (a computerized data
base) on the Service's wildlife inspection program's activities may
be incomplete. 

\8 The investigations and prosecutions may include instances
involving a mix of federal and nonfederal lands and violations of
statutes in addition to the ESA.  Cases involving the taking of bald
eagles are not included because Service officials stated that these
cases are typically prosecuted under other statutes, such as the Bald
Eagle Protection Act. 

\9 An additional instance of injunctive relief obtained under the
authorities of the ESA involved a listed species under the protection
of the Department of Commerce's National Marine Fisheries Service. 

\10 Christy v.  Hodel, 857 F.2d 1324 (9th Cir.  1988), cert.  denied,
490 U.S.  1114 (1989). 

\11 U.S.  v.  Kepler, 531 F.2d 796 (6th Cir.  1976). 


   AGENCY COMMENTS
------------------------------------------------------------ Letter :6

In commenting on a draft of this report, the Assistant Secretary for
Fish and Wildlife and Parks, Department of the Interior, stated that
the report's discussion of the application of section 7 and section
10 of the ESA to nonfederal land use activities was accurate.  (See
app.  II.)


---------------------------------------------------------- Letter :6.1

Our review was conducted between June 1993 and October 1994 in
accordance with generally accepted government auditing standards.  A
discussion of the scope and methodology for our work is contained in
appendix III. 

Unless you publicly announce its contents earlier, we plan no further
distribution of this report until 30 days from the date of this
letter.  At that time, we will send copies to the appropriate
congressional committees; the Secretary of the Interior; and the
Director, U.S.  Fish & Wildlife Service.  We will also make copies
available to others upon request.  Please call me on (202) 512-7756
if you or your staff have any questions.  Major contributors to this
report are listed in appendix IV. 

James Duffus III
Director, Natural Resources
 Management Issues


SUMMARY OF APPROVED HABITAT
CONSERVATION PLANS (AS OF
06/01/94)
=========================================================== Appendix I

                              Dates
                              effectiv  Listed         Total HCP   Project
Plan title     Location       e         species\a      area\b      description
-------------  -------------  --------  -------------  ----------  -------------
Fish and Wildlife Service Region 1
--------------------------------------------------------------------------------
San Bruno      San Mateo      3/4/83 -  Mission blue   3,600       Various
Mountain       County,        3/31/     butterfly,     acres       public and
               California     2013      San Bruno                  private
                                        elfin                      projects
                                        butterfly,                 including
                                        San Francisco              residential
                                        garter snake               and
                                                                   commercial
                                                                   development

Coachella      Riverside      4/25/86   Coachella      240,000     Various
Valley         County,        -4/30/    Valley         acres       public and
               California     2016      fringe-toed                private
                                        lizard                     projects
                                                                   including
                                                                   residential
                                                                   and
                                                                   commercial
                                                                   development

California     Kern County,   1/18/90   San Joaquin    635 acres   Construction
Dept. of       California     -12/31/   kit fox,                   and operation
Corrections,                  2040      blunt-nosed                of a state
Delano Prison                           leopard                    correctional
                                        lizard,                    facility
                                        Tipton
                                        kangaroo rat

County of      Riverside      8/1/90 -  Stephens'      300,000     Various
Riverside      County,        9/30/94   kangaroo rat   acres\c     public and
(short term    California                                          private
permit)                                                            projects
                                                                   including
                                                                   residential
                                                                   and
                                                                   commercial
                                                                   development

Lennane        Sacramento,    8/17/90   Valley         48 acres    A development
Properties     California     -7/31/    elderberry                 including
                              95        longhorn                   office,
                                        beetle                     retail, and
                                                                   residential
                                                                   dwellings, as
                                                                   well as a
                                                                   hotel

City of        Yuba County,   1/29/91   Valley         27 acres    Construction
Marysville     California     -1/31/    elderberry     \           and operation
                              97        longhorn                   of effluent
                                        beetle                     disposal
                                                                   ponds

Coalinga       Fresno         3/21/91   San Joaquin    43.7        Construction
Cogeneration   County,        -3/31/    kit fox,       acres       and operation
               California     2011      blunt-nosed                of a 38-
                                        leopard                    megawatt
                                        lizard                     cogeneration
                                                                   facility

Clark County   Clark County,  7/24/91   Desert         299,700     Various
(short term    Nevada         -7/31/    tortoise       acres       public and
permit)                       94                                   private
                                                                   projects
                                                                   including
                                                                   residential
                                                                   and
                                                                   commercial
                                                                   development

Corona         Riverside      12/30/    Stephens'      627 acres   Construction
Development    County,        91 -12/   kangaroo rat               of a
Co.            California     31/98                                residential
                                                                   development

Simpson        Del Norte,     9/17/92   Northern       383,100     Timber
Timber Co.     Humboldt,      -9/16/    spotted owl    acres       harvesting
               Mendocino,     2022                     \           operations
               and Trinity
               Counties,
               California

Citation       Riverside      9/28/92   Stephens'      21.6        A residential
Builders       County,        -9/28/    kangaroo rat   acres       development
               California     94

Envirocycle    Kern County,   2/26/93   San Joaquin    20 acres    Construction
               California     -2/26/    kit fox,                   and operation
                              2043      blunt-nosed                of a waste
                                        leopard                    solids
                                        lizard, giant              transfer and
                                        kangaroo rat               processing
                                                                   plant

Yucca Valley   San            8/26/93   Desert         4.8 acres   Construction
Church Sites   Bernardino     -8/26/    tortoise                   of church
               County,        96                                   buildings and
               California                                          related
                                                                   facilities

Murray         Lewis County,  9/24/93   Northern       54,610      Timber
Pacific Corp.  Washington     -9/24/    spotted owl    acres       harvesting
                              2093                     \           operations

Coyote Hills   Fullerton,     10/22/    California     391 acres   A golf course
East           California     93 -10/   gnatcatcher                and
                              22/2018                              residential
                                                                   community

Granite        Fresno         12/29/    San Joaquin    54 acres    Expansion of
Construction   County,        93 -12/   kit fox,                   a sand and
               California     29/2013   blunt-nosed                gravel
                                        leopard                    extraction
                                        lizard                     operation

Valley of      Clark County,  1/20/94   Desert         16.58       Reconstructio
Fire State     Nevada         -1/20/    tortoise       acres       n and
Park                          2024                                 operation of
                                                                   a road within
                                                                   a state park

Pacific        Riverside      5/27/94   Stephens'      30.75       A residential
Gateway Homes  County,        -5/27/    kangaroo rat   acres       development
               California     96

Champagne      Kern County,   6/1/94 -  Tipton         82 acres    Construction
Shores         California     6/1/      kangaroo rat               and operation
                              2024                                 of an
                                                                   artificial
                                                                   water ski
                                                                   lake and
                                                                   associated
                                                                   residential
                                                                   development


Fish and Wildlife Service Region 2
--------------------------------------------------------------------------------
LakeLine Mall  Austin, Texas  2/13/92   Bee Creek      116 acres   A shopping
                              -2/13/    harvestman,                mall
                              2022      Tooth Cave
                                        ground
                                        beetle,

Canyon Ridge   Austin, Texas  8/17/93   Golden-        142.61      A mixed
                              -8/17/    cheeked        acres       residential,
                              2013      warbler                    commercial,
                                                                   and office
                                                                   development

Lake Pointe    Travis         2/15/94   Golden         496 acres   A single-
               County, Texas  -2/28/    cheeked                    family
                              2009      warbler                    residential
                                                                   and
                                                                   commercial
                                                                   development


Fish and Wildlife Service Region 4
--------------------------------------------------------------------------------
Nichols/       North Key      10/10/    Key Largo      9 acres     A residential
Hendrix/Post   Largo,         86 -12/   woodrat, Key               development
               Florida        31/91     Largo cotton
                                        mouse

Driscoll       Monroe         6/6/90 -  Key Largo      42 acres    Land clearing
Properties,    County,        5/31/     woodrat, Key               and
Inc.           Florida        95        Largo cotton               construction
                                        mouse, Schaus              of
                                        swallowtail                residential
                                        butterfly                  homes

Wal-Mart       Highlands      3/11/93   Florida scrub  24.26       A retail
Stores, Inc.   County,        -3/11/    jay, eastern   acres       store
               Florida        94        indigo snake,
                                        blue-tailed
                                        mole skink,
                                        sand skink

International  Monroe and     10/21/    Red Hills      30,000      Timber
Paper          Conecuh        93 -10/   salamander     acres       harvest
               Counties,      21/2024                              operations
               Alabama

Sea Mist,      Baldwin        12/27/    Alabama beach  46 acres    A residential
Inc.           County,        93 -12/   mouse                      development
               Alabama        27/2023

D&E            Baldwin        4/29/94   Alabama beach  252 acres   A residential
Investments,   County,        -4/29/    mouse                      development
Ltd.           Alabama        2024

Fel-Kran,      Baldwin,       5/4/94 -  Perdido Key    27 acres    A residential
Inc.           County         5/4/      beach mouse    \           development
               Alabama        2024                                 with
                                                                   associated
                                                                   piers

Ocean Ridge,   Brevard        5/30/94   Florida scrub  8.2 acres   A residential
Ltd.           County,        -5/30/    jay                        development
               Florida        2004


Fish and Wildlife Service Region 6
--------------------------------------------------------------------------------
Hell Canyon    Salt Lake      2/10/94   American       30 acres    Operation of
Quarry         City, Utah     -2/10/    peregrine      \           a quarry
                              2014      falcon                     producing
                                                                   limestone,
                                                                   sand, and
                                                                   gravel
--------------------------------------------------------------------------------
\a Species listed here are those specifically covered by the
incidental take permit.  In some cases, listed plants, candidate
species, and/or other species of concern are addressed in the HCP. 

\b Total HCP area acres is the size of the planning area within which
the activity or development will occur. 

\c This figure represents the historic range of the Stephens'
kangaroo rat.  The total HCP area is somewhat smaller. 




(See figure in printed edition.)Appendix II
COMMENTS FROM THE DEPARTMENT OF
THE INTERIOR
=========================================================== Appendix I


SCOPE AND METHODOLOGY
========================================================= Appendix III

In preparing this report, we examined the Endangered Species Act
(ESA) and the applicable federal regulations to identify the
processes that the ESA establishes for protecting species on
nonfederal lands.  We obtained information on efforts to protect
species on nonfederal lands by sending a written survey to the U.S. 
Fish and Wildlife Service's (FWS') seven regional offices.  We
pretested this survey instrument at three FWS regional offices and
two FWS field offices and obtained comments from the Division of
Endangered Species at FWS headquarters. 

Using the survey, we collected data on (1) the number of
ESA-protected species with habitat on nonfederal lands, (2) the
portion of these species' habitat on nonfederal lands, (3) the number
of law enforcement investigations and prosecutions related to ESA
takings on nonfederal lands, and (4) instances in which injunctive
relief was obtained under the ESA to stop or delay nonfederal land
projects or activities that could potentially harm protected species. 
We discussed the completeness and accuracy of the survey data with
personnel from all of FWS' regional offices and over 30 field
locations.  Many of these officials provided us with additional
details on their responses to certain questions. 

We obtained information on specific instances in which potential
conflicts existed between species protection and nonfederal land use
activities through a review of FWS documents and records describing
the results of consultations under section 7 of the ESA and a review
of approved habitat conservation plans.  We also discussed these
specific instances with knowledgable FWS officials.  Finally, we
contacted knowledgeable individuals from agencies and organizations
outside of FWS to verify information on injunctive relief obtained
under the ESA and to obtain information on constitutional taking
claims. 

Our review included species listed in the United States as of May 10,
1993.\12 As agreed, we did not include species for which the National
Marine Fisheries Service has responsibility. 


--------------------
\12 This includes species with habitats on nonfederal lands in Puerto
Rico, the Commonwealth of the North Marianas Islands, Guam, the
Federated States of Micronesia, and the Virgin Islands. 


MAJOR CONTRIBUTORS TO THIS REPORT
========================================================== Appendix IV

RESOURCES, COMMUNITY, AND ECONOMIC
DEVELOPMENT DIVISION, WASHINGTON,
D.C. 

Paul Grace
Fran Featherston

SEATTLE REGIONAL OFFICE

William K.  Garber

